HKSAR v. HO SUN KIN AND ANOTHER

CACC210/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. CACC 210 OF 1998

(ON APPEAL FROM DCC166 OF 1998)

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J U D G M E N T

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Chan, CJHC (delivering the judgment of the court) :

1. Both Applicants pleaded guilty to one count of being members of the crew of a ship entering Hong Kong with unauthorised entrants on board, contrary to section 37C(1)(a) of the Immigration Ordinance, Cap.115. Each of them was sentenced to 3 years and 4 months' imprisonment. They now apply for leave to appeal against sentence.

2. The two Applicants and another Defendant in the same case were crew members of a boat which had on board 3 women from China, one of whom was pregnant. While the boat was illegally entering Hong Kong, it was intercepted by a police launch. The Applicants and the other Defendant were arrested.

3. The boat involved was 8 meters long and was a small craft. It had no life-saving equipment. Neither was there any concealed compartment. At the time of interception, it was running at night but without any lights on.

4. The Deputy Judge adopted a starting point of 5 years and reduced the sentence by 1/3 to take into account of the mitigating circumstances and sentenced them to 3 years and 4 months.

5. It is submitted by counsel for these Applicants that the starting point of 5 years adopted by the Deputy Judge was too high. Quite fairly, Mr. Wong on behalf of the Prosecution accepted this. According to the authorities, such as Wong Yin Lung, and Ng Kit Yuen, the starting point should have been one of 4 years. However, Mr. Wong argues that while the starting point adopted by the Deputy Judge might have been a little too high, the overall sentence imposed upon the Applicants was about right, bearing in mind one aggravating factor and that is there was one pregnant woman on board the boat.

6. Counsel for the Applicants points out that the Deputy Judge accepted the Applicants were not organisers, owners, or captains of the boat. She argues that the Deputy Judge also failed to give sufficient weight to the guilty plea and personal circumstances of each of the Applicants. Before us, counsel drew our attention to certain family background information relating to each of the Applicants.

7. It is quite clear, as conceded by the Prosecution, that the starting should have been 4 years. This was in fact adopted by another Judge when he sentenced the other Defendant in this case. While we accept that there was a pregnant woman on board, the circumstances in this case, in our view, do not call for an increase in the starting point as a result of this aggravating factor. That neither judges mentioned this fact which was clearly stated in the Summary of Facts in their respective judgments does not mean that they were not alert to this when they were sentencing the Applicants and the other Defendant. Apart from the guilty plea, the other personal circumstances including the additional information given to us, are to say to least unexceptional. We do not think the Deputy Judge had failed to put sufficient weight to these circumstances. These Applicants came from China to commit this offence. They should have been aware of the consequences, particularly the consequences to their family members in China. As regard the plea, we see that the Applicants probably would have no other alternative because they were arrested while they on board. Yet the Deputy Judge had given them a discount for their pleas.

8. Counsel also submits that there is a sense of grievance to these Applicants because another Judge sentenced the other Defendant to a lower sentence. We accept what Mr. Wong says that in the normal circumstances, different sentences given by different judges should not be a ground of complaint. However, in the present case, it is clear that the Deputy Judge had adopted too high a starting point and coupled with the disparity in the sentences, we think that this is a cause for genuine grievance.

9. In the circumstances, we would grant leave to appeal against sentence. We treat the hearing of the application as the hearing of the appeal. We allow the appeal and reduce the sentence to one of 3 years for each of the Applicants.